Appeal of the BOARD OF EDUCATION OF THE DEPOSIT CENTRAL SCHOOL DISTRICT from actions taken at an annual district meeting.

Decision No. 16,078

(June 29, 2010)

Hogan, Sarzynski, Lynch, Surowka & DeWind, LLP, attorneys for petitioner, John P. Lynch, Esq., of counsel

STEINER, Commissioner.--The Board of Education of the Deposit Central School District (“petitioner” or “board”), seeks an order pursuant to Education Law §2037 annulling the canvass of votes and certification of election results following the district's annual meeting and correcting the canvass.  The appeal must be sustained.

On May 18, 2010, petitioner conducted its annual district meeting, which included votes on the annual budget, a proposition for the purchase of buses, and an election to fill three seats on the board.  This appeal concerns only the vote on the annual budget.

This was the first time the board conducted the annual meeting using paper ballots.  Petitioner submits affidavits from the election inspectors (Elizabeth Lloyd, Pat Strong and Frank Musacchio) and the District Clerk, who participated in the counting of the paper ballots on the evening of May 18th after the polls had closed.  The affidavits provide slightly different accounts of what occurred during the vote tally.  According to the affidavits, the ballots were recounted at least three (Strong, Musacchio) or four times (Lloyd, Clark).  Lloyd and Musacchio state that at the conclusion of the first count, the budget passed by three votes; however, Strong states that the first count resulted in a tie.  Lloyd and Musacchio state that the second count resulted in the budget passing by one vote.  Lloyd and Clark state that two additional counts resulted in a tie vote (223 for and 223 against).  The record also indicates that potential distractions occurred while they were counting, including other people talking and some type of conflict among bystanders in a corner of the auditorium, and that some of the election inspectors appeared tired.

In any event, the election inspectors certified the results as a tie and the District Clerk locked the ballot box.  However, it was agreed that the ballots should be counted again the next morning.  There was also a discrepancy in that the total number of votes determined to be cast on the budget (446) did not match the total number of votes cast (449) as shown by the poll list (445 persons casting votes on May 18, 2010), plus the number of absentee ballots received (4), but this apparently was not addressed at the time.

During the morning of May 19, 2010, the ballots were counted again by election inspector Strong, the District Clerk, Jennifer Macumber (secretary to the Superintendent of Schools) and Charlotte Ellsworth (an account clerk in petitioner's business office).  It appears from the record, including affidavits submitted by these individuals, that during the May 18th count, the Yes votes were separated from the No votes, and then further separated into stacks of 10 votes; that during the May 19th recount, Macumber and Ellsworth counted and recounted the stacks of the No votes resulting in a total of 223 No votes; that a first count of the stacks of Yes votes by Clark and Strong resulted in a total of 225 Yes votes, but that during a second count, it was discovered that one of the stacks only had nine votes instead of 10, resulting in a total of 224 Yes votes; and that a third count confirmed the 224 Yes vote total.  Thus, the May 19th recount resulted in a determination that the budget passed 224 votes to 223 votes.

The May 19th recount also reached a determination reconciling the discrepancy between the total number of votes canvassed on the budget (447) and the total number of votes cast (449).  According to Macumber's affidavit, after Strong speculated that ballots that didn't include a budget vote may have been thrown in the garbage during the May 18th count, a search of the auditorium garbage resulted in finding two ballots that included votes for the board trustees but did not include votes on the budget or bus proposition.  This resolved the discrepancy since 447 votes on the budget plus the two discovered votes (for trustees, but not on the budget) equals 449 total votes cast.

At a May 24, 2010 meeting of the board, some community members objected to the May 19, 2010 recount results and argued that petitioner should accept the May 18, 2010 vote count.  Petitioner then adopted a resolution by unanimous vote to commence this appeal to seek my review of the election and the tally of the votes.  Petitioner requests that I issue an order declaring the results of the budget vote to be 224 in favor of the budget and 223 against.

Initially, I must express my concern that the ballot box was reopened on May 19th for a recount, and also that two ballots were found in the garbage.  Education Law §2034(6) requires that ballots be placed in a locked and sealed ballot box, and that the ballot box shall not be opened except upon order of the Commissioner or upon resolution of the board of education after a period of six months has elapsed without any proceeding being commenced in regard to the election.  Instead of opening the box on its own initiative and conducting a recount, petitioner should have immediately commenced an appeal to me for an order pursuant to Education Law §2034(6)(a) directing that the ballot box be opened and the ballots recounted (Appeal of Gresty, 31 Ed Dept Rep 90, Decision No. 12,580).  However, since a recount was in fact conducted on May 19, 2010 and, unlike the situation presented in Gresty, there is nothing in the record in this appeal that suggests any improper conduct, it would serve no purpose for me to order another recount.  Petitioner has demonstrated to my satisfaction, based on the recount conducted on May 19, 2010, that the actual result of the budget vote was 224 in favor and 223 against.

While I strongly caution petitioner to ensure that the ballot canvassing procedures in the Education Law are followed in future votes, based upon the affidavits submitted and the record before me establishing an error in the counting of the votes on May 18, 2010, I find that the appeal must be sustained.

THE APPEAL IS SUSTAINED.

IT IS ORDERED, that the actions of petitioner board of education in canvassing and declaring the result of the ballot with respect to the vote on the proposed 2010-2011 school district budget on May 18, 2010, be, and hereby are, annulled; and

IT IS FURTHER ORDERED that the canvass of votes with respect to proposed 2010-2011 school district budget be corrected in conformity with this decision, and that such budget be declared to have passed by a vote of 224 in favor of the budget and 223 against.

END OF FILE.